A recent Dauphin County case has brought attention to who decides whether a person charged with a criminal offense is permitted to participate in a pretrial diversionary or first-time offender program known as Accelerated Rehabilitative Disposition, commonly called "ARD." With the ARD program, a person pleads not guilty to the criminal charges, but the person willingly accepts a punishment from the court in the form of supervision by the probation department, payment of court costs and fees, community service, and completion of counseling. Upon completion of the ARD requirements and compliance with its conditions, the person successfully completes the ARD program and is normally able to have the charges dismissed and then expunged from the criminal records maintained by the government.
There are exceptions to the general rule that successful completion of ARD allows for the expungement of charges. In the expungement law, set forth in section 9122(b.1) of the Crimes Code, there is a list of charges that are prohibited from being expunged if the victim in the case is less than 18 years old. Another exception to expungement in Pennsylvania driving under the influence cases is that a notation of participation in ARD remains on a person's Pennsylvania driving record. While the criminal records can be expunged, a notation will remain on the driving record for at least 10 years. Unless certain exceptions apply, PennDOT will expunge the DUI charge from the driving record after 10 years.
ARD Consideration Process in Pennsylvania
Many people believe that it is the judge in a case that determines whether or not a person is permitted to participate in the Accelerated Rehabilitative Disposition program in Pennsylvania. Those people simply expect that it is the judge that primarily has a criminal case, but it is actually the prosecutor, which is generally the county district attorney's office, that has almost complete control over admission into the ARD program. If the prosecutor denies ARD approval, a defense attorney can force the district attorney to provide reasons or justification for the decision. In very limited situations, a criminal defense lawyer may be able to file a motion and request that a judge overrule the prosecutor's decision, but the law gives prosecutors a considerable amount of discretion.
In the case of Commonwealth v. Corrigan, the Pennsylvania Superior Court quoted Supreme Court precedent as stating that "the decision to submit the case for ARD rests in the sound discretion of the district attorney, and absent an abuse of that discretion involving some criteria for admission to ARD wholly, patently and without doubt unrelated to the protection of society and/or the likelihood of a person's success in rehabilitation, such as race, religion or other such obviously prohibited considerations, the attorney for the Commonwealth must be free to submit a case or not submit it for ARD consideration based on his view of what is most beneficial for society and the offender." This basically means that as long as the prosecutor has some sort of legitimate reason for denying ARD that is not based upon the applicant's race, religion, or other prohibited consideration, the ruling will not be overruled by a judge.
Dauphin County ARD Case
In a recent case in Dauphin County, a prosecutor is considering a request for acceptance into ARD for a woman that is charged with abusing her position as treasurer of the Susquehanna Township girls' basketball booster club by stealing approximately $40,000.00 to $50,000.00. Had this case occurred in Centre County, I do not believe that the Centre County District Attorney's Office would approve ARD. In my many years of practicing criminal defense in this area, I cannot recall a single case of embezzlement involving substantial amounts of money being approved to participate in ARD. Many people believe that if they are a first-time offender, then they are entitled to ARD. ARD is a privilege and not a right, which means that not all first-time offenders are approved to participate in the program. In Centre County, first-time offenders that are charged with Retail Theft for stealing a few items from a store or for delivery of drugs for selling a small amount of marijuana to a friend are not approved for ARD. Oddly, if a person steals from someone else, the charge is Theft by Unlawful Taking, and that person can be approved to participate in ARD. I have no idea why the Centre County District Attorney would feel compelled to punish someone that steals from a store more severely than a person that steals from another Centre County citizen. Prior prosecutors in this area did not make such a distinction and routinely approved Retail Theft cases to participate in the Centre County ARD program.